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S.B. Civil Writ Petition No.2073/2000

M/s Aravali Cylinders Pvt. Ltd. Vs. State of

Raj. & Ors.

19.02.2007

Hon'ble Mr. Justice Mohammad Rafiq

Mr. A.K. Bajpai for petitioner.

Mr. A.K. Sharma for respondents

Heard learned counsel for the

parties.

The petitioner in this case has

prayed for a mandamus directing the

respondents to grant him incentive /

rebate at the rate of 20% of the

development

charges

together

with

interest at the rate of 24% per annum on

the date it became entitled to such

incentive / rebate. Shri A.K. Bajpai, the

learned counsel for the petitioner

contends that the lease deed was executed

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in favour of the petitioner by the

respondent RIICO on 9.11.1982 and

therefore according to their Circular

dated 6.3.1981, it was entitled to a

rebate of 20% of the development charges

because the company started production

within the period of two years from the

date of allotment. Such amount was liable

to be refunded to the petitioner after

two years. The petitioner was entitled to

total incentive of Rs.1,02,010/- as the

total area of the land allotted to it was

20000 sq. mtrs on which it raised the

construction.

The respondents have contested

the claim of the petition. Shri A.K.

Sharma, the learned counsel for the

respondent-RIICO submitted that the

petitioner has concealed the material

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facts in as much as the Circular dated

6.3.1981 stood superseded by a subsequent

Circular of the RIICO dated 11.10.1985

according to which the allottees are

entitled to rebate of 20% per sq. mtrs,

i.e. Rs.5/- per sq. mtrs, if the unit

goes into production within a period of

two years. Shri A.K. Sharma invited

attention of the Court towards the

communication dated 2.8.86 addressed to

the petitioner by the RIICO in which the

petitioner allowed a total incentive of

Rs.18,769.50 for the covered area of

1876.95 sq. mtrs and with that the

security amount of Rs.10,000/- has been

ordered to be refunded. Thus the total

refundable amount comes to Rs.28769.50

but with this amount of refund, a sum of

Rs.85458.45 has been held recoverable

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from the petitioner out of which

Rs.59048.40 was the amount of penalty of

unauthorised construction raised by the

petitioner in front set back and side set

back. In this connection, he referred to

para 5 of their Circular dated 11.10.85

which provides that in order to

discourage unauthorised constructions and

to regularise any such construction,

which cannot be demolished, the RIICO may

regularize it in accordance with the

compounding rate as approved by its

Infrastructure Development Committee and

if any such amount is to be recovered as

compounding fee, the same shall

invariably be deducted / adjusted out of

the rebate amount.

Shri A.K. Bajpai, the learned

counsel for the petitioner rejoined and

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submitted that the Circular dated

11.10.85 cannot be applied to the case of

the petitioner because the lease deed in

favour of the petitioner was executed on

9.11.1982 and at that time Circular dated

6.3.1981 was in vogue. According to him,

the amount of incentive shall have to be

counted on the basis of total land area

which come to Rs.1,02,010/- and not

18,769.50/- because land area alloted to

the petitioner was 20000 sq. mtrs.

Contention of the petitioner

cannot be accepted because he has neither

produced any such instruction of the

earlier period which may suggest that the

development charges are to be calculated

on the basis of the total land area nor

has he placed on record any other

material or data to substantiate his

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claim that this was the practice which

the respondents had been following in

such similar cases prior to issuance of

Circular dated 11.10.85. Besides, the

first communication which is under

dispute is dated 2.1.1986 and the

petitioner has